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Case 1 :1 1 -cr-1 0260-NMG Document 21 Filed 1 0/06/1 1 Page 1 of 1 



Crim. No. 11-CR-10260-NMG 



Defendant, Aaron Swartz, submits this opposition to the Government's motion for 
a protective order, including the proposed order attached thereto. Dkt. No. 18. Mr. Swartz 
has filed a cross-motion to compel with a proposed order attached thereto as Exhibit A. 
Dkt. No. 19. He has also filed a memorandum of law. Dkt. No. 20. 

At the outset, it is critical to note that the Government acknowledges that all of 

the documents and information it has withheld are automatically discoverable under this 

Court's local rules or Rule 16, or both. It does not argue that these rules do not require 

disclosure of the withheld documents and information. It does not argue that there is any 

reason to delay these disclosures either. The Government's motion provides no lawful 

basis for the entry of its proposed protective order. 



Both the first paragraph of the Government's proposed order and its motion rely 

on the indictment's unproven allegations, as if this Court may rely on them as evidence to 

support a finding of good cause to enter a protective order under Rule 16(d)(1). The 

government would have this Court find that JSTOR and MIT are "victims" before the 

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trial. The Government cites no legal authority for any of this, because there is none. 

The Government is urging this Court to obliterate the presumption of innocence and the 

Government's burden of proof at trial. It would have this Court call this abrogation of 

Mr. Swartz's constitutional rights "good cause." The Government says that some of its 

evidence "cannot be disputed," but its position urges the Court to accept the 

Government's representations as fact, its version of the evidence and its supposed 

indisputable nature as truth or, at a minimum, to presume that the Government's 

representations are true. All of that is prohibited the Constitution. 

Based on this unconstitutional predicate, the Government urges this Court to find 

that Mr. Swartz presents a "very real risk of serious and irremediable harm." Gov. 

Motion at 1. There is nothing in the record that can support such an unconstitutional 

finding. Indeed, the evidence pertaining to Mr. Swartz's trustworthiness includes the 

following: (1) Mr. Swartz appeared voluntarily for arraignment; (2) Mr. Swartz has been 

in full compliance with the conditions of his release; (3) on June 7, 2011, months prior to 

his arraignment, Mr. Swartz provided certain hard drives to the Government. The 

Government's August 12, 2011 letter states that this was a "consensual and unconditional 

delivery." There is absolutely no basis in this record to find that Mr. Swartz cannot be 

trusted to use the discovery and assist in the presentation of his defense in a lawful 




A. The Categories of Withheld Documents and Information Are 
Overbroad and Completely Unjustified. 

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The Government has withheld the following: (1) the defendant's written 

statements, including statements that it intends to offer in its case-in-chief; (2) 

software that it alleges Mr. Swartz wrote and used to commit the offenses alleged in 

the indictment; and (3) evidence seized from Mr. Swartz's residence and workplace 


Acer laptop computer recovered at MIT 

Western Digital hard drive recovered at MIT* 

HP USB drive seized from the defendant at the time of his arrest 

Apple iMac computer seized at Harvard 

Western Digital hard drive seized at Harvard 

HTC G2 cell phone seized during the search of the defendant's residence 

Nokia 2320 cell phone seized during the search of the defendant's residence 

Sony Micro Vault seized during the search of the defendant's residence 

The Government has overbroadly, and without any justification, withheld documents 

and information that it alleges was written by, or sourced from, Mr. Swartz, even 

thought it has not shown that any of this information is sensitive, confidential, 

proprietary or valuable. 

For example, the Government argues speciously that Mr. Swartz's access 

should be restricted to software code even though it alleges that Mr. Swartz authored 

and used that very software code. If its allegation is correct, Mr. Swartz has always 

been fully capable of writing the code again now, and broadcasting it if he so 

chooses. He has not done so. The Government provides no basis whatsoever for 

withholding or restricting Mr. Swartz's access to his own written statements and the 

evidence it seized from computers that it alleges belonged to Mr. Swartz. The fact 

that this information has been withheld unjustifiably makes it clear that the 

* Search warrant applications for devices seized at MIT and Harvard allege probable 
cause to believe that these devices belong to Mr. Swartz and are evidence of the 
commission of the offenses charged in the indictment. 

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Government is seeking to burden Mr. Swartz in the conduct of his defense for no 

legitimate reason. 

B. The Withheld Documents Are Not Sensitive, Confidential, 
Proprietary or Valuable. 

Under the rules of civil and criminal procedure, litigants in this Court are not 

permitted to withhold documents from discovery, or to claim entitlement to protective 

orders, simply because they make self-serving and unsubstantiated claims that the 

documents or information are not discoverable on the same terms as any other 

discoverable materials. The Government is not exempt from having to substantiate its 

claims with evidence, nor is any proffered substantiation immune from adversarial 

challenge. This is particularly true when discovery provided for by the Rules of 

Criminal Procedures is an essential assurance of the fairness of criminal trials, and the 

accuracy of verdicts that can deprive a person of his or her liberty. 

The Government's bare assertion that the withheld documents and information are 

" potentially sensitive, confidential, and proprietary" (Gov. Order at 1, emphasis 

supplied) or "very valuable" (Gov. Motion at 2) falls far short of providing any 

evidentiary and lawful basis for the issuance of a protective order. The Government 

cannot and does not say that any of the withheld information is actually "sensitive" (a 

term that has no legal meaning in this criminal discovery context), confidential, or 

proprietary. Tellingly, the Government claims only that the withheld information is 

" potentially " sensitive, confidential, and proprietary. The Government has provided 

zero evidence to support a judicial finding that any of the withheld documents and 

information, much less all of that material, is actually "sensitive, confidential, and 

proprietary" or "very valuable." 

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C. The Government's Purported Justifications For Withholding 
Discoverable Documents and Information Are Unsupported by 
Evidence and Any Such Evidence Must Be Subject to Adversarial 

This Court lacks authority to approve the Government's proposal to impose the 

significant and unwarranted burdens on Mr. Swartz's ability to participate efficiently 

and effectively in his own defense, without the Government presenting evidence that 

can be subjected to adversarial scrutiny and challenge. In a footnote to its motion, the 

Government says, "A JSTOR representative will address this issue before the Court at 

hearing on this motion." Dkt. No. 18 at 3 n.l. This cannot be permitted. If the 

Government has evidence to support the purported justifications for imposing a 

burden on Mr. Swartz's participation in his defense, it must be presented in 

evidentiary form so that it can be subjected to cross-examination and adversarial 

challenge. When litigants assert rights to withhold discovery or seek to impose 

restrictions on access, they must do so under oath in evidentiary form. Such claims 

are then properly subject to adversarial challenge. The government has had months to 

present such evidence, and it has failed to do so. 


A. Restrictions on Documents Other Than Data on External Drives 
Delivered by Mr. Swartz. 

In substance, paragraphs 2 and 3 of the Government's proposed order prohibit Mr. 

Swartz from having copies of documents and information provided by the 

Government. Under the Government's proposal, the documents cannot be 

electronically transmitted to Mr. Swartz by his counsel, investigators or experts. 

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Paragraph 3 prohibits the defense from displaying the documents and information to 
prospective trial witnesses unless they first sign the protective order. These 
restrictions impose burdens on the cost-efficient and effective functioning of the 
defense. The Court cannot impose handicaps on the defense's functioning without 
substantial evidence justifying them. No such evidence has been proffered. 

The most important member of the defense team is Mr. Swartz. This case centers 
on complex issues concerning the operation for several months of complex computers 
and computer networks, software written in computer languages, etc. Mr. Swartz 
works during the day, mostly in New York City. Undersigned counsel works in 
Boston during the day. The defenses experts are not in New York or Boston and 
work during the day. His investigators are not in New York. Mr. Swartz must work 
on his case during nights and weekends. His work will consume a great many hours. 
It is prohibitively expensive to require Mr. Swartz to have to work with the discovery 
materials in the presence of a court-ordered supervisor. The gain from having Mr. 
Swartz work in the presence of others is non-existent. He must be able to take notes 
and write memos for the defense team based on what he examines. He can recall 
what he examines. The supposed gain in data security sought by the Government is 
slight to non-existent, but the expensive handicap imposed on the defense is 

The prohibition of transmission of the materials to and from Mr. Swartz makes it 
impossible to conduct timely, effective and efficient, interactive consultation between 
Mr. Swartz and his defense team. It is absolutely essential for Mr. Swartz and the 
defense team to be able to circulate, annotate and comment on the details in the 

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discoverable documents without Mr. Swartz having to be in the presence of anyone 

when he works on this case. That kind of free and frequent communication at all 

hours is essential to the functioning of the defense including, but not limited to, the 

period shortly before and during the trial. 

The Government will not be similarly restricted. It can freely provide whatever 

information it wants, by whatever means, to the prosecution team and potential 

witnesses. The Rules of Criminal Procedure are designed to preserve - not skew - 

the balance of litigation advantage in the exchange and use of discoverable 

information. Nothing in the record supports a finding that Mr. Swartz will obstruct 

justice or abuse discoverable information. To the contrary, all of the evidence 

supports Mr. Swartz 's trustworthiness as a litigant who is presumed innocent in this 


B. Restrictions Pertaining to Data Delivered to the Government by Mr. 

The government claims that only the government has the ability to secure the data 
on the drives Mr. Swartz delivered to the government from being obtained by third 
parties. Without the slightest evidence to support its assertion, the Government would 
have this Court rule as if the defense's facilities lack adequate security for this 
purpose. Undersigned counsel has secured from intrusion and theft highly 
confidential information for decades without a single security breach. There is 
absolutely no reason to doubt that the defense cannot store and use the information 
securely. But, in reality, the Government's proposed order imposes prohibitive, 
logistical and security problems for the defense. 

First, any defense examination of the data delivered by Mr. Swartz to the 

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Government entails making an electronic record in that data of the defense's searches 
and examination of the data. The defense may need to install and use its own software 
to conduct its examination on a government-controlled computer. The defense will 
need to make copies of certain information for purposes of investigation, trial 
preparation and trial. If the government's proposed order is approved, all of that 
information must be included in data that remains in the custody of the Government. 
All of this is unquestionably work product information. Paragraph 4 of the 
Government's proposed order would require the defense's work product privileged 
information to be in the custody of the Government. This chills the defense's 
activities. This cannot be reconciled with the Sixth Amendment right to counsel. The 
government's work product will not be similarly exposed. The lack of even 
handedness violates due process fairness. There is no legal authority to impose such 
unconstitutional burdens on the defense. 

Second, the proposed protective order would require the defense to work on a 
Government-controlled schedule and in a Government-selected location on 
Government-controlled computers. There is absolutely no justification for hobbling 
the defense in this manner. The defense must be agile and absolutely independent. It 
should not be dependent on having to make arrangements with the Government to 
work at times and under conditions that the government deems feasible. 

Third, much of the supposedly proprietary and valuable information allegedly on 
the drives delivered by Mr. Swartz is in the public domain either due to JSTOR's 
actions or other reasons. For example, on September 6, 2011, weeks after this 
indictment was returned, JSTOR's website made what it terms "Early Journal 

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Content" consisting of "nearly 500,000 articles" publicly accessible to anyone. 
JSTOR also stated its intention to make additional releases of articles. See JSTOR 
announcement attached hereto as Exhibit 1. In practical terms, the Government is 
urging this Court to require the defense to examine in a Government office 
approximately 500,000 articles that are publicly accessible for free or have been made 
publicly accessible for free by JSTOR. All of the articles in JSTOR' s database can be 
freely accessed in libraries. 

Paragraph 4 of the proposed order applies to defense examination of huge 
amounts of non-proprietary, public domain information. For that reason, paragraph 4 
is nonsensical and imposes an onerous and prohibitive burden on the defense for no 
legitimate reason. 

For all the foregoing reasons, Mr. Swartz urges the Court to deny the 
Government's motion for a protective order. 

Respectfully submitted, 

/s/Andrew Good 
Andrew Good 
BBO # 201240 
Good & Cormier 
83 Atlantic Avenue 
Boston, MA 02110 
Tel. 617-523-5933 

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I hereby certify that the foregoing document filed through the ECF system will be sent to 
counsel for the Government who are registered participants as identified on the Notice of 
Electronic Filing ("NEF"). 

DATED: October 6, 2011 

/s/ Andrew Good 
Andrew Good 

G:\CLIENTS\Swartz, Aaron\Pleadings - Federal Court Case\Defendant's Opposition to U.S. Motion for Protectiive Order.doc 


Case 1 :1 1 -cr-1 0260-NMG Document 21-1 Filed 1 0/06/1 1 Page 1 of 2 

Exhibit 1 

Case 1:11-cr-1 0260- NMG Document 21-1 Filed 1 0/06/1 1 Page 2 of 2 


Nearly 500,000 articles in more than 200 
journals are now freely available on JST0R. 

Anyone may now search, read online, and download PDFs of "Early 
Journal Content." The Early Journal Content includes journal articles 
published in the United States before 1923 and articles published in 
other countries before 1870, and includes discourse and scholarship in 
the arts and humanities, economics and politics, and in mathematics and 
other sciences. 

The free Early Journal Content is available for use by anyone, without 
registration and regardless of institutional affiliation. The amount of 
free content will grow over time. As we add more journals to JSTOR, 
new articles within these time ranges will be added to the Early Journal 
Content, and will remain freely available. 

Making this early journal content freely available is the most recent step in 
our ongoing work to expand access to content on JSTOR, particularly for 
individuals who are not affiliated with academic institutions or libraries. 
More efforts are planned for the future; currently in progress is a project to 
enable individual researchers to register with the JSTOR site to read more 
recent articles online for free. 

Access for Individuals 


Early Journal Content 


Terms and Conditions of Use 


Early Journal Content Highlights 

Democracy in Education 

John Dewey 

The Elementary School Teacher 

Vol. 4, No. 4 (Dec, 1903), pp. 193-204 

Published by: The University of Chicago Press 

Article Stable URL: 

"General Intelligence," Objectively Determined and 

C. Spearman 

The American Journal of Psychology 

Vol. 15, No. 2 (Apr., 1904), pp. 201-292 

Published by: University of Illinois Press 

Article Stable URL: 

Japanese Textiles at the Columbian Exposition 

The Decorator and Furnisher 

Vol. 23, No. 2 (Nov., 1893), pp. 57-59 

Article Stable URL: 

Woman's Half-Century of Evolution 

Susan B. Anthony 

The North American Review 

Vol. 175, No. 553 (Dec, 1902), pp. 800-810 

Published by: University of Northern Iowa 

Article Stable URL: 

On the True Date of the Rosetta Stone, and on the 
Inferences Deducible from It 

Edward Hincks 

The Transactions of the Royal Irish Academy 

Vol. 19, (1843), pp. 72-77 

Published by: Royal Irish Academy 

Article Stable URL: